One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank

BBSNews 2014-11-23 — By ACRI. A new report published by the Association for Civil Rights in Israel (ACRI) outlines the nature of the legal regime currently operating in the West Bank. Two systems of law are applied in a single territory: one – a civilian legal system for Israeli citizens, and a second – a military court system for Palestinian residents. The result: institutionalized discrimination.

“Two residents of the Hebron area have an altercation within the territory of the West Bank and both are arrested. One of them, a Jewish resident of Kiryat Arba, is taken to a nearby police station, is immediately interrogated by a police officer and is brought within 24 hours to a hearing before the Jerusalem Magistrates Court. In this hearing, the judge decides to order his release on condition of bail; this is not a very severe case, and the defendant pleads self-defense.

The second person, a Palestinian resident of Hebron, is arrested for 96 hours before being brought before a military judge. He is de facto interrogated only once during this period of time, under suspicion of committing an assault based on nationalistic motivations, which is deemed as a security offense, and he is tried before a military court, where he faces a penalty of extended incarceration.”

CIA Map of the West Bank. Accessed 2014-11-23.

The ‘One Rule, Two Legal Systems’ report reviews the prevailing legal situation in the West Bank under Israeli rule, and explains how decades of “temporary” military rule have given rise to two separate and unequal systems of law that discriminate between the two population groups living in the one territory – Israelis and Palestinians. The legal differentiation is not restricted to security or criminal matters, but touches upon almost every aspect of daily life.

A series of military decrees, legal rulings and legislative amendments have resulted in a situation whereby Israeli citizens living in the Occupied Territories remain under the jurisdiction of Israeli law and the Israeli court system, with all the benefits that this confers. The High Court of Justice has ruled that the rights enshrined in Israel’s Basic Laws (equivalent to constitutional provisions) apply equally to these citizens, despite the fact that they do not reside in sovereign Israeli territory. A substantial portion of Israeli Law is also applied within the Occupied Territories to “Jews according to the Law of Return” and yet are not Israeli citizens.

By contrast, Palestinians in the West Bank are subject to much stricter military legal law – military orders that have been issued by IDF Generals since 1967. This is in addition to Jordanian Laws that preceded the region’s occupation. Unlike Israeli citizens, Palestinians are tried in military tribunals for every crime from traffic violations to the theft of a carton of milk from the grocery store.

According to Attorney Tamar Feldman, Director of Human Rights in the Occupied Territories Department: “This report demonstrates that discrimination between Israelis and Palestinians, living under one rule and in the same territory, is not a localized phenomenon, but an issue of institutional discrimination, as it applied to areas entirely unrelated to security matters. It falls to Israeli society to recognize this reality.”

Attached to this report is the response of the Justice Ministry, which does not deny the factual situation outlined in the report, but justifies it according to security considerations.

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I have much pleasure in conveying to you, on behalf of His Majesty's Government, the following declaration of sympathy with Jewish Zionist aspirations which has been submitted to, and approved by, the Cabinet.

"His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country."

I should be grateful if you would bring this declaration to the knowledge of the Zionist Federation.

"A census of Palestine conducted by the Mandatory government on 23 October 1922. Population figures in the census featured a breakdown by district of residence, religion, language and age.

The total population of Palestine was given as 757,182, of whom 590,890 (78%) were Muslims (“Mohammedans”), 83,794 (11%) Jews, 73,024 (9%) Christians and 9,474 others. The population of Jerusalem was given as 62,578, of whom 13,413 were Muslims, 33,971 Jews, 14,699 Christians and 495 others." From the report:

"In accordance with the provisions of the Proclamation of 1st September 1922, published in the Official Gazette of the same date, a census of Palestine was held on the night of the twenty-second -- twenty-third of October, 1922."

"(1) To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant...

(4) Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory..."

-- Avalon Project at Yale Law School, "The Covenant of the League of Nations, Including Amendments adopted to December, 1924, June 28th, 1919," Lillian Goldman Law Library. (accessed December 2nd, 2016).